In a sweeping power grab, the Department of Justice has asked Congress for the ability to go directly to chief judges in order to detain people indefinitely without trial during emergencies.
The move is part of a recent push to expand government powers during the coronavirus pandemic, according to Politico, which has reviewed documents that detail the DOJ's requests to lawmakers on this and a host of other topics - including state of limitations, asylum, and how court hearings are conducted.
The move has tapped into a broader fear among civil liberties advocates and Donald Trump’s critics — that the president will use a moment of crisis to push for controversial policy changes. Already, he has cited the pandemic as a reason for heightening border restrictions and restricting asylum claims. He has also pushed for further tax cuts as the economy withers, arguing that it would soften the financial blow to Americans. And even without policy changes, Trump has vast emergency powers that he could legally deploy right now to try and slow the coronavirus outbreak. -Politico
Politico notes that the requests are unlikely to make it through the Democratic-controlled House.
As part of the requests, the DOJ proposed that Congress grant the attorney general the ability to ask that any chief judge of any district court to pause court proceedings "whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation." Similarly, these top judges would have broad authority to pause court proceedings during emergencies.
Additionally, the requested changes would explicitly say that people with COVID-19 cannot apply for asylum - a request that comes on the heels of a Friday announcement by the Trump administration that it would begin denying entry to all illegal immigrants at the southern border - including those seeking asylum.
According to Politico, the changes would apply to "any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings."
As we have heard from those in the legal profession, however, the courts have already ground to a virtual halt amid the Chinese coronavirus outbreak - as jurors aren't coming in, and face-to-face depositions aren't happening right now in many parts of the country.
The proposed changes have raised concerns over the implications for habeas corpus - the right to appear before a judge and seek release.
"Not only would it be a violation of that, but it says ‘affecting pre-arrest," said Normal L. Reimer, who heads up the National Association of Criminal Defense Lawyers. "So that means you could be arrested and never brought before a judge until they decide that the emergency or the civil disobedience is over. I find it absolutely terrifying. Especially in a time of emergency, we should be very careful about granting new powers to the government."
Reimer added that the notion of chief judges suspending court rules during an emergency indefinitely is deeply disturbing.
"That is something that should not happen in a democracy," he said.
The department also asked Congress to pause the statute of limitations for criminal investigations and civil proceedings during national emergencies, “and for one year following the end of the national emergency,” according to the draft legislative text.
Trump recently declared the coronavirus crisis a national emergency.
Another controversial request: The department is looking to change the Federal Rules of Criminal Procedure in some cases to expand the use of videoconference hearings, and to let some of those hearings happen without defendants’ consent, according to the draft legislative text.
“Video teleconferencing may be used to conduct an appearance under this rule,” read a draft of potential new language for Federal Rule of Criminal Procedure 5(f), crossing out the phrase “if the defendant consents.”
“Video teleconferencing may be used to arraign a defendant,” read draft text of rule 10(c), again striking out the phrase “if the defendant consents.” -Politico
According to Reimer, forcing people to have hearings over videoconference vs. in-person would threaten civil liberties.
"If it were with the consent of the accused person it would be fine," he said, adding "But if it’s not with the consent of the accused person, it’s a terrible road to go down. We have a right to public trials. People have a right to be present in court."
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